NHSC ANNUAL CONFERENCE 2009 LEIGH HANCHER

STRUCTURE OF PRESENTATION  THE SCOPE OF THE EU TREATY RULES AND IMPLICATIONS FOR THE NHS  FREE MOVEMENT  COMPETITION  STATE AID HORIZONTAL DIRECTIVES – IMPLICATIONS FOR THE NHS PROCUREMENT WORKING TIME ADVERTISING OF PRESCRIPTION PRODUCTS

THE TREATY RULES  FREE MOVEMENT RULES => MEMBER STATES  COMPETITION AND STATE AID RULES => UNDERTAKINGS.  NB. FREE MOVEMENT RULES APPLY TO WIDE RANGE OF MEASURES  NB COMPETITON RULES CAN IN CERTAIN SITUATIONS ALSO APPLY TO STATE MEASURES!

THE FREE MOVEMENT RULES  THESE RULES ARE ‘DIRECTLY EFFECTIVE’  = CAN BE RELIED ON TO SET ASIDE CONFLICTING NATIONAL RULES  THESE RULES FORBID ANY MEASURES WHICH HINDER ACCESS TO AN ACTIVITY/MARKET  UNLESS JUSTIFICATION CAN BE MADE OUT BY MS - TREATY EXCEPTIONS AND ‘RULE OF REASON’  EXAMPLES IN HEALTH SECTOR  - Case C-169/07 Hautlauer; C-570/07 Perez

THE COMPETITION RULES  APPLY TO UNDERTAKINGS/ECONOMIC ACTIVITIES  WHAT IS AN UNDERTAKING?  EXAMPLES OF RELEVANCE TO THE NHS  FENIN – SPANISH HOSPITALS  BETTERCARE - UK OFT RULING

THE STATE AID REGIME  ART 107 PROHIBITION ON STATE AID TO UNDERTAKINGS  ART 108 – NOTIFICATION TO COMMISSION FOR DECISION ON COMPATIBILITY  ART 106(2) EXEMPTION FOR SGEIS  Case T-289/03 BUPA  BELGIAN HOSPITALS – Comm Dec OCT 2009  MONTI PACKAGE OF 2005 – SPECIAL RULES FOR REGIONAL HOSPITALS

THE COMPETITION RULES  ART 101 – PROHIBITS RESTRICTIVE AGREEMENTS/CARTELS  EXAMPLES: GLAXO; AOK  ART 102 – PROHIBITS ABUSE OF A DOMINANT POSITION  EXAMPLES IN HEALTH CARE SECTOR  ASTRA ZENECA; FENIN

HORIZONTAL DIRECTIVES  PROCUREMENT RULES  WORKING TIME  ADVERTISING OF PRESCRIPITON PRODUCTS

PROCUREMENT  RULES APPLY TO ALL SECTORS INCLUDING HEALTH  SPECIFICATION OF FREE MOVEMENT RULES  APPLY TO PUBLIC SECTOR BODIES CONTRACTING FOR WORKS, SERVICES AND SUPPLIES ABOVE THRESHOLDS  PUBLIC/PRIVATE PARTNERSHIPS  IN-HOUSE EXCEPTION  EVEN IF PROCUREMENT RULES DO NOT APPLY – FREE MOVEMENT RULES DO!

THE WORKING TIME DIRECTIVE  ECJ RULINGS ON 48 HOUR MAX WEEK  ACTIVE/INACTIVE ‘ON CALL’  OPT-OUT CLAUSE  PROPOSALS FOR REFORM – NOW STALLED – COMMISSION REVIVES DIALOGUE WITH SOCIAL PARTNERS UNDER ART 154 TFEU

ADVERTISING OF MEDICINES  THE ABPI CASE C-62/09 - AN UNEXPECTED USE OF AN EU DIRECTIVE?  RESTRICTIONS TO DOCTORS ON PRESCRIPTION PRODUCTS = ADVERTISING OR NOT UNDER ART 94 OF EU DIRECTIVE 2001/83?  ECJ RULING OF APRIL > NOT ADVERTISING  ANY LESSONS?

CONCLUSIONS  EUROPEAN LAW IS OF MAJOR IMPORTANCE TO PUBLIC AND PRIVATELY ORGANISED HEALTH CARE SERVICES  FREE MOVEMENT RULES CAN AFFECT ORGANISATION AND DELIVERY OF HEALTH CARE  COMPETITION RULES CAN BE FAR-REACHING IN IMPACT IF ACTIVITIES ARE CARRIED OUT BY UNDERTAKINGS  EU DIRECTIVES – AS INTERPRETED BY THE COURTS – CAN ALSO HAVE FAR-REACHING AND SOMETIMES UNPREDICTABLE EFFECTS.

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